So You've Just Been Found Guilty of Professional Misconduct & Sanctioned or Dismissed From Employment? Top 5 Strategies on How to Successfully Appeal

Probably what all professionals dread most is a formal finding that they’ve committed some form of misconduct, or are otherwise not fit to continue to continue in their profession. We’ve all invested a lifetime in getting to where we are professionally. Losing a job is bad enough, but one might be able to recover as there are other jobs out there. However you might never truly recover from losing a profession.

While it’s nice to think that professional conduct or employment proceedings should turn out as they should if you truly didn’t do anything worthy of serious sanction, we all know that’s not always going to be the case. Every decision maker brings personal biases to conduct hearings. And not every hearing has the full evidentiary picture before it. Thus it can be hard to predict whether or not there will be a finding of misconduct, and what kind of sanction might flow from such a finding, if you’re facing allegations brought before a professional regulator or employer.

You might be defending yourself before a professional conduct board or an employer’s tribunal (which could even just be your professional boss), hoping your reasonable explanations will carry the day, only to learn that you’ve not only lost the hearing, but also lost your professional position and perhaps even your entire profession. What’s to be done?

Rest assured you’ve got options. But you’ll need to act fast in pursuing them.

STRATEGY #1: ACT QUICKLY IN APPEALING A PROFESSIONAL OR EMPLOYMENT SANCTION, YOU’LL LIKELY ONLY HAVE 30 DAYS OR LESS

Being timely in an appeal is much more important than getting the grounds of appeal perfect. You might be trying to find a lawyer to help you with an appeal, but are having trouble raising the retainer, or even getting an appointment. Unfortunately none of these are excuses for being late with an appeal. You can file a two page handwritten appeal if need be, so long as it gets filed on time.

What amount to “on time” will vary greatly depending on what your’re trying to appeal, and where you’re trying to appeal to. Usually the longest you ever have to appeal anything under Canadian law is 30 days. There’s no magic to the 30 day limit (in theory it could be longer), but this just seems to be a common rule that has developed. So not matter what kind of appeal it is, if you’re getting close to 30 days from the time of decision it’s time to worry.

But some appeals can be shorter than 30 day limits. 15 days is also a common limit, though much less common than 30 days. And sometimes it can be as short as 10 or even 7 days, but both those brief limits are rare.

So don’t guess over how much time you have to appeal. Figure out where the appeal goes to, and ask someone there what the time limitation is. It won’t be a secret.

STRATEGY #2: CAREFULLY ASSESS WHO HAS JURISDICTION TO HEAR THE APPEAL

Who can hear a professional conduct or employment appeal can be a lot tricker to figure out than the question of how much time is available to appeal. The usual options for where an appeal goes are:

1. to an internal appeal body run by the professional regulator or employer;

2. to a court capable of hearing a judicial review, such as the Ontario Divisional Court or the Federal Court;

3. to a court capable of hearing a civil action, such as the Ontario Superior Court of Justice or the Federal Court;

4. to an appellate court, capable of hearing an appeal from a lower court, like the Ontario Court of Appeal or the Federal Court of Appeal (usually only after you’ve been in a lower level court for a first crack at an appeal).

STRATEGY #3: DETERMINE YOU BEST GROUNDS OF APPEAL TO INCLUDE IN A NOTICE

Appeals aren’t just another kick at the original hearing can. To win an appeal, you’ve usually got to find an error of law or mixed fact and law or jurisdiction. Possible appeal winning angles include:

1. a denial of procedural fairness and natural justice;

2. so serious a misapprehension of the facts as to amount to an error of law that could have affected the outcome of the hearing;

3. bias by the decision maker (which doesn’t need to be intentional and conscious);

4. an error of law serious enough to have affected the outcome of the proceedings.

STRATEGY #4: TAKE PROCEDURAL STEPS NECESSARY TO GET APPEAL HEARD

Being on time, before the right body, with good grounds, still won’t do you any good if you don’t have the necessary follow through to create and file all the required documents to have your case listed for an appeal hearing. Among the documents you may need to create or order and file include:

1. Notice of Appeal;

2. Transcripts of Hearing (not all conduct boards or employers will create transcripts out of hearings);

3. Exhibits from Hearing, compiled with other materials into an Appeal Record;

4. Factum of Legal Argument on Appeal (essentially a legal brief explaining the facts and law and why you should win, usually 30 pages or less).

STRATEGY #5: PARTICIPATE IN APPEAL HEARING & RESPOND TO PROFESSION/EMPLOYER MATERIALS

Some professional conduct or employment appeals will be paper processes, meaning there is no oral hearing and physical appearance before decision makers. Others will actually involve an in-person appearance to make oral argument and respond to questions.

Especially if there isn’t an in-person hearing, plan to file a brief written reply with the appellate decision maker to the responding submissions of the regulator or employer, as that might be your only chance to come to grips with the argument opposing your submissions.

Gordon S. Campbell is a professional conduct lawyer practicing throughout Canada who has argued cases up to the level of the Supreme Court of Canada. His representative works includes defending government executives, teachers, accountants, engineers and law enforcement officers on professional misconduct, medical, administrative, criminal and civil proceedings before conduct boards, appeal tribunals and in provincial and federal courts. Learn more at www.proconductlaw.com.

Why Being in Both Family & Criminal Courts Simultaneously is Hell: Top 8 Tips on How to Survive Concurrent Family & Criminal Proceedings

There’s no question that being dragged into a court proceeding is among life’s most stressful events, regardless of what kind of proceeding it might be. But what about if you’re stuck in two simultaneous proceedings, in two different courts having completely different rules, requiring different lawyers and different court dates?

One of my “things” seems to have evolved as helping clients with simultaneous family and criminal court proceedings. Usually it’s the criminal case that starts first. Though it might be the family case. Sometimes one spouse is charged with something. Sometime they’re both charged. The result can be absolute spousal non-communication for any purposes bail orders, combined with prohibitions on seeing children.

But the non-communication - even through lawyers - means family court disputes over children, property and support can get frozen for many months in an ice age of criminal procedure, where your lawyer can’t even find out if your spouse has hired a family lawyer, as that enquiry could itself be a breach of a criminal no contact order. The inevitable result is a great big intractable legal mess, even when both parties want to make some progress resolving the family law issues.

Here are my top 8 tips on how to make progress in surviving concurrent family and criminal court proceedings.

1. REQUEST RELEASE CONDITIONS AT TIME OF ARREST OR BAIL HEARING PERMITTING INDIRECT SPOUSAL CONTACT THROUGH COUNSEL FOR PURPOSES OF FAMILY PROCEEDINGS

You might think you’ve got no leverage to negotiate anything at the time of being arrested, but you could be surprised at what you can get from an arresting officer or a court if you ask nicely. Even if you think family law proceedings are unlikely in your case, if your charge has anything potentially to do with “domestic violence” you need to anticipate that family law might later get involved. So ask the arresting officer or justice of the peace in bail court for an indirect contact exception through legal counsel with your spouse for the purposes of family law separation or court proceedings.

That indirect contact through counsel exception dealt with up front might save you months of misery trying to later get a consent bail variation through the court. The Crown (and courts) will often favour a “cooling off period” for any subsequent contact between spouses after a domestic charge is laid, making immediate negotiation of a variation a challenging process. Addressing the indirect contact issue up front with the arresting officer will so simplify things.

2. AVOID INDIRECT CONTACT TEMPTATIONS

Don’t under any circumstances try to indirectly contact your spouse to deal with family law proceedings, or to respond to his/her initiation of those proceedings, without a no contact order exception if you’re bound by criminal release conditions requiring no contact. There is no “necessity” exemption to no contact.

3. RESOLVE CRIMINAL PROCEEDINGS ASAP

As slow as it might seem, generally the criminal justice system moves a lot faster than the family justice system, due to guaranteed rights like trial within a reasonable time. Rather than fight a war on two fronts simultaneously, it’s going to be easier for your to mentally and financially deal with one battle at a time. Thus usually the best approach is to try to resolve criminal proceedings as soon as possible so that you can move on with family proceedings.

Very few criminal cases ever proceed to trial, thus you should assume resolution is possible. And even if your case is one of those to go to trial, since criminal trials are often set up to a year in advance because of court backlogs, the sooner you set that criminal trial date, the more breathing room you’ll have to deal with family proceedings while awaiting criminal trial.

4. REMAIN SILENT IN FAMILY PROCEEDINGS IF NECESSARY

While you’ve only got a right to remain silent in your criminal and not your family law proceedings, practically you don’t want to do yourself in on the criminal side by blabbing on the family side. Don’t admit to anything in family proceedings that might prejudice your criminal case.

If a CAS investigation is ongoing, explain to CAS that you can’t discuss the matters related to your ongoing criminal proceedings. Same with a custody and access assessment.

Now I know you might be thinking keeping custody of your children on the family proceedings side is far more important than potentially risking a little jail on the criminal proceedings side, plus you’ve done nothing wrong so you don’t have anything to worry about on the criminal side anyway. However, you need to attempt to avoid giving any evidence in the family proceeding so as to preserve your criminal trial right to remain silent, and not risk an attempt by someone to use any family court evidence against you in the criminal proceeding.

Practically speaking there is a balance here in giving evidence that you need to speak to your lawyer(s) about, since insisting on absolute silence in family proceedings in the face of multi-year criminal proceedings won’t be a tenable position. However, staying silent for a few months while criminal proceedings are expeditiously resolved could be more viable.

5. FOCUS FAMILY PROCEEDINGS ON ISSUES AVOIDING CRIMINAL ALLEGATIONS

If family proceedings can’t be put off pending conclusion of criminal proceedings, try to avoid any talk of criminal proceeding events in family court and instead focus on (a) property division, (b) spousal support, and (c) child custody/access/support, in that order. While property division might initially be the lowest priority, it is also likely the safest issue to openly discuss as it is not dependent on conduct of the parties. While spousal support has some conduct implications that might require the parties to give evidence, it is less evidence heavy than issues involving children which can require a wall of facts to deal with.

6. BUDGET FOR MUCH MORE MONEY ON THE FAMILY THAN CRIMINAL PROCEEDINGS SIDE

In budgeting, generally your criminal proceedings are likely to cost far less in legal fees than your family proceedings, even if you take your criminal charge to trial, simply because criminal cases usually involve much less court and preparation time than family cases, which can get very document intensive, involve complex financial calculations, and have many substantive court appearances that stretch out over months and years: case conferences, settlement conferences, trial management conferences, motions, as well as trials.

It is possible if you take a complex criminal case to trial, but amicably settle your family case, that the family court proceedings could cost less than the criminal proceeding, but that will be a rare scenario.

Now you might be tempted to think you can only afford a lawyer for one legal battle, and are wondering if you should deploy the lawyer on the criminal or the family side? My suggestion is that such choices are impossible to make. Losing either could ruin your life. Better try to stage and sequence proceedings, meaning criminal first which should wrap up within 12 months (unless a very serious case) and family after.

The specifics on true costs? Many criminal charges can often be resolved for under $5,000 in legal fees. Many less complicated criminal trials can be run for $10,000 to $15,000 if they only involve a couple of days in court, plus preparation time.

By comparison, a full blown family law trial can top $100,000 in fees (and some can top $200,000 if there are motions and appeals). Rather than being measured by total days in court (start to end), family law proceedings can be measured by weeks in court, stretching out over many years. There are certainly ways to reduce the total expense, but even the most efficient family proceeding, where spouses agree on most of the issues, is still going to cost more than most criminal cases.

7. PLAN FOR MUCH MORE TIME ON THE FAMILY PROCEEDINGS SIDE

I’ve seen family law cases regularly go for over 5 years. With criminal, you’re usually at the one to two year level at worst, and sometimes it will only be a few months if the matter can be resolved.

Again, there are ways to speed up family cases, but you can almost always bet on a simultaneous criminal case getting to the finish line first before the family proceeding.

8. CONSIDER ONE LAWYER TO REPRESENT YOU IN FAMILY & CRIMINAL COURT

Consider hiring a lawyer that can deal with both your family and criminal proceedings. But be very careful in considering the potential for one versus two lawyers, as the main advantage will be that you’ll have a common point of contact, and there can be better coordination in presenting strong legal cases for you in both courts. This won’t necessarily save you money as the type of work required for each kind of case is quite different. And you don’t want to wind up with a lawyer who knows a whole lot about one type of law, but almost nothing about the other.

In my experience, there aren’t a lot of lawyers who do an equal amount of criminal law and family law, though a few of us do exist, perhaps because we started in one area of the law (in my case criminal law where I served for many years as a Federal Crown Prosecutor), prior to moving into the other area. Certainly some judges in Canada are expected to be equally knowledgeable about criminal and family law, if they are to try both kinds of cases, so balanced family and criminal knowledge is possible on the lawyer side. Just choose carefully.

Gordon S. Campbell equally practice both family law and criminal defence law throughout Ontario. He has appeared on family and criminal trials and appeals in the Ontario Court of Justice, Ontario Superior Court of Justice, Ontario Divisional Court, Court of Appeal for Ontario, and at the Supreme Court of Canada. Learn more at www.nofearfamilylaw.com and www.defenceeast.com.

What the Central Park 5 Can Teach Us All About Police Questioning: Why Exercising the Right to Remain Silent is in Your Best Interests

Netflix sometimes teaches us things beyond the fact that you can now get a whole lot of quality viewing for not much money every month. The popular When They See Us show about the Central Park Five teaches us that, given the right circumstances, people will tell the police what they want to hear, and you’re never doing yourself any favours in doing so.

In my 24 years involved in criminal law, I’ve never come across anything in Canada like the Central Park Five false confession confession convictions, and I hope I never do. But make no mistake that there is a lot police officers can do in Canada that is completely lawful to get you to talk.

The police certainly might tell you that if you just tell the truth, you can go home. That’s essentially what the Central Park Five were told.

The police also might suggest to you what the truth is, and ask you to agree. Again, that’s what happened to the Central Park Five.

No one can beat you. No one can deny you medical care. No one can deny you food and water. But when it comes to how much questioning is too much, there can be judicial disagreement.

Now you might be wondering: “If I just say I didn’t do it, isn’t that going to help me?” In short, no.

Nothing wrong with identifying who you are to the police. They might not let you go until you do that, and there is some conflicting caselaw out there saying you might have a positive duty to identify yourself. But that’s about it.

You have no duty to help the police on criminal matters, except in some very, very limited circumstances like providing information under the Automobile Insurance Act about an accident. If in doubt, ask if you’re required to answer.

Most people seem to believe they have a legal (or at least moral) duty to help the police by telling all, even if they are the ones facing criminal jeopardy. Or at least they think that by telling the police a long convoluted story that they might have trouble keeping straight - as true as it might be - they are doing themselves a favour. They couldn’t be more wrong.

Why You Need to Resist the Urge to Talk

I find almost all people - regardless of levels of education - have an urge to talk at length to the police, even if it’s just to deny everything. They all seem blind to the fact that those denials can later be handily used against them. They’ll do things like:

1. pin themselves down in one location at the time of the offence;

2. identify the people they were and weren’t with at the time of the offence;

3. offer justifications as to why they couldn’t possibly have done anything wrong;

4. voluntarily produce documentary evidence - like an entire lifetime on a cell phone;

5. identify other people for the police to talk to - including speculating that they may have “done it”;

6. voluntarily offer to provide blood samples, or take lie detector tests, or accompany the police to particular locations;

7. voluntarily offer to permit the police to search a vehicle or a residence.

You’ve got to realize, that by producing negatives, you’re really offering positives which you can later be tripped up on. Even if you’re completely innocent, those trip ups can make you look guilty.

Why You Effectively Have No Right to Silence if You Feel Obliged to Talk

The key point is that everyone has a fundamental rights to remain silent under the Canadian Charter of Rights and Freedoms. It’s not especially different from the Central Park Five’s “Miranda Rights” as they’re often called in the US after a famous case. But if you’re not exercising that right in an informed way, then you’ve really got no right at all.

Thus everyone needs to be absolutely certain that speaking to the police is a choice, not a duty. They also need to know that in questioning suspects, the police will employ various techniques to encourage a voluntary spilling of the beans, including potentially lying to you. The police can’t coerce you. Your statement needs to be voluntary, meaning its free of threats, promises or an atmosphere of oppression. But there can often be a fine line - and disagreement among judges - over how the police can encourage statements.

Unlike in the United Kingdom, but exactly like we saw with the Central Park Five, recordings don’t start the moment witnesses enter police interview rooms in Canada. Likewise the police mostly don’t wear body cameras in Canada. So various things can be said to you by police prior to any recording being started, just like in the Central Park Five. You shouldn’t let those things influence your willingness to give a statement.

Why This Post is Police Positive

I don’t make the rules. It was Parliament in the Constitution Act, 1982 which decided to constitutionally entrench the right to silence under Canadian law.

In part of my practice, I actually do a lot of work with law enforcement officers, including prosecuting cases, as well as representing them on administrative matters. So long as they obey the law, I’ve got nothing to criticize about their techniques in getting people to talk as part of an investigation. It’s their job to get you to talk. Some are quite good at it.

My stressing potential Canadian parallels to the Central Park Five is only meant to underline that you could effectively wind up in their situation even without being a youth and without the police impropriety involved in that case just by an officer lawfully continually asking you the same questions, and you feeling like you should be helpful, because that is likely the best way to enable you to go home.

Avoid Turning a Witness Interview Into a Target Interview

If it’s very clear to you - and you clearly ask police - that you are only a witness, and not a subject of investigation, you might be tempted to speak to them. There’s nothing wrong with assisting the course of justice so long as you’re not going to pay for providing that help. But before doing so, you absolutely need legal advice, since you’ll recall that the Central Park Five were initially told they were only being spoken to as witnesses, not as targets of investigation.

Like the Central Park Five, everyone just wants to go home. They hope that by talking, the police will believe every word they say, and give them that coveted get out of jail free card. They fail to appreciate that the police can lawfully withhold information from them, and even lawfully lie to them in order to adduce information.

Identify yourself, call a lawyer, and wait for the questioning to end. It lawfully could take a while. The police are just doing their jobs.

Gordon S. Campbell practices criminal, civil and family trial and appellate litigation throughout Ontario. He’s author of The Investigator’s Legal Handbook (Carswell 2006, 2014; Yvon Blais 2010) series of books and has appeared on precedent setting cases up to the level of the Supreme Court of Canada.

How to Apply for Leave to Appeal to the Supreme Court of Canada: Top 5 Tips for a Winning Public Importance Pitch

The Supreme Court of Canada is truly every litigant’s last kick at the proverbial can. You may have fought the good fight and won at trial, only to lose before a provincial appellate court. Or you might might have lost in every court, but believe your case is worth one last shot. The Supremes have the last judicial word word as the highest court in Canada.

But you don’t have a right to go to the SCC in almost all but a few very narrow situations. You’ve got to ask for permission, known as seeking leave to appeal. Only about 1 in 10 cases that seek leave are granted it. Here are my top 5 tips to maximize your chances of grasping that golden leave ring.

1. Be on Time With Serving and Filing for Leave to Appeal

You’ve only got 60 days from the date of the judgment you’re seeking leave to appeal on to serve and file a complete leave to appeal application with the Supreme Court of Canada. We’re not talking just a flimsy notice here, but rather filing the entire package (which is why they’re giving you 60 days, rather than the more common 30 days to file a notice of appeal).

Far better a so-so leave to appeal application record filed on time, than a perfect application filed late. Courts hate extending statutory limitation period filing deadlines. If you miss the 60 day limitation, you’re probably dead, even though technically you can ask for an extension.

2. Understand Limits of S. 40 Supreme Court Act Jurisdiction

Only judgments from the highest court of any province, or the Federal Court of Appeal, can usually be subject to a Supreme Court of Canada leave application. There are a few rare exceptions to this, but generally you need to have exhausted all possible appeals in the provincial or federal courts system before petitioning the Supremes.

However, importantly you don’t need a “final” judgment on which to seek leave. An interlocutory temporary order could be just as much the subject of a leave to appeal application.

3. Know How to Sell the “Public Importance” Test

The Supremes don’t care if you’ve been wronged by a court of appeal. They don’t care if a court of appeal erred in law. They’re already perhaps the busiest court of last resort in the Commonwealth. They don’t need any more work.

So Parliament set out in s. 40 of the Supreme Court Act that they should only take on appeals where “the Supreme Court is of the opinion that any question involved therein is, by reason of its public importance or the importance of any issue of law or mixed fact and law involved in that question, one that ought to be decided by the Supreme Court or is, for any other reason, of such a nature or significance as to warrant decision by it….”

What this means in practice is that you’ve got to sell the ramifications of your case, and the appellate judgment concerning it that you want to overturn, as extending way beyond your personal facts. Ideally, you want to sell it as being so publicly important, that it’s of national importance, though “national” isn’t an official requirement.

4. Why is This the Right Issue, on the Right Record, at the Right Time

Veteran of the Supremes Mr. Justice Cromwell suggested in a seminar selling the Court on why this is the right issue, on the right record, at the right time, in order to best convince them why they should give you leave.

The right issue point is selling public importance. But his point was that’s only a third of the test, which also requires you to persuade that the record is right, meaning that the facts aren’t a total mess, or completely absent, such that the Court would be able to come to a sensible legal decision based on a full coherent factual record, rather than waiting for a similar case to come along that perhaps has clearer facts.

His last point of the “right time” at least in part revolves around when the Court might have last considered the issue (if ever), whether Parliament has or is considering the issue by way of legislative solution, and whether the appellate courts of the provinces have sufficiently considered the issue so as to have evolved into a contradictory jurisprudential patchwork that requires clarification.

5. You Must Use an Ottawa Agent

Courts can be a little traditional in their practices. The Supreme Court of Canada was established in days of horse and buggy, where getting materials out of Montreal, or Toronto, or even Vancouver to be filed with the Court could be quite an ordeal. And just like courts today, there was a good chance that once your materials did land on the desk of the Court Registrar, some technical thing was going to be found wrong with them.

Technical deficiencies in court materials can have really simple, one hour, swap out a document for another document types of fixes, but not if your horse and buggy - or rail car - needed to travel back to Montreal, Toronto or Vancouver to make the fix. Plus the SCC rules are quite unique as compared to the rules of any other court, meaning you don’t want lawyers trying to interpret them who only deal with one case there every 20 years.

Section 16 of the Rules of the Supreme Court of Canada provide that “A party to an appeal or to a reference to the Court shall only conduct business with the Registrar through an agent.” Section 2 of the Rules defines “agent” as “a lawyer practicing in the National Capital Regional within the meaning of the National Capital Act.” There are a few of us local to the NCR who both conduct SCC appeals (and leave to appeal applications), as well as act as agents for out of jurisdiction lawyers.

Gordon S. Campbell serves as counsel throughout Canada on Supreme Court of Canada leave to appeal applications and appeals. He will co-counsel or act as agent for lawyers from outside the NCR dealing with the SCC. He previously served with the Constitutional Law Division of the Attorney General of Ontario and the Department of Justice Canada.

The 5 Rules for Successful Access to Information & Privacy Act Requests for Government Information in Canada

Governments know a lot of stuff. But it’s sometimes very difficult to pry any of that knowledge away from them. 

The early 1980’s marked the start of the openness era for many governments, including Canada which introduced the Access to Information Act and the Privacy Act (collectively known as ATIP) in 1983. The Privacy Act enables individuals to request personal information that the government holds about them, whereas the Access to Information Act enables anyone to request government records generally, subject to numerous exceptions. 

Canada has more recently followed the lead of other countries with “Open Data” projects that put government gathered data - often of a statistical nature - into the public domain, so that others can make use of it. Though some data remains closely guarded. And we lag behind other places in putting raw documents (or really much of anything of a timely nature) online for easy download.

For a while I served as Canada’s Director of E-Business Development. Not surprisingly, our Electronic Commerce Branch of Industry Canada had a series of website pages explaining what we did, and containing links to useful sources. In essence, we were in charge of the Internet from the Government of Canada’s perspective. Think I was able to change even one word on that website during my entire tenure as Director? Nope. 

Government putting it all out there online (even for sensitive private matters that might cause legitimate pause in Canada) is especially prevalent in the United States where the then world leading Freedom of Information Act was implemented as early as 1966. The White House even puts its legal opinions online (though by retaining private counsel this openness can be somewhat circumvented)!

So Canada’s governments (and really any governments outside the U.S.) can be a little slow at information dissemination. Governments are often more reactive, than proactive, when it comes to information sharing. But government functionaries can actually be quite helpful if you know who and how to ask for the right information that you need.

Getting a useful response to an ATIP request involves a lot more than luck. As an information and privacy lawyer, who used to work inside government on such requests and who now assists private clients in getting information out of government, here as my top 5 rules for writing winning requests. I actually call these “rules” rather than “tips” because if you ignore these points, you likely won’t be getting any useful results for your efforts.

While this post is focussed on federal Government of Canada access to information and privacy laws, its principles would apply equally to provincial government access and privacy legislation which often works in quite similar ways. 

1. Target Correct Government Department for Information

The government operates in silos. Contrary to what you might think from watching TV shows about high tech pan-government all-knowing data systems displayed on giant screens in darkened rooms - modern version’s of Kubrick’s Dr. Strangelove bunker warroom - at least for Canada government information systems are often old, creaky and not interconnected.

The government doesn’t operate in the cloud, because the government doesn’t trust the security of the cloud. But the result at least some of the time is old file servers in dusty closets and paper files of undigitized information. 

With luck, a single government department knows what information it possesses. But it definitely doesn’t know what’s in the hands of other government departments. And government departments often don’t like to share or play well together

So the first principle of good access and privacy requests is to get the department right where you think the information you want resides. If you’re not sure, make requests to multiple departments. It’s cheap fun. Depending, of course, on your idea of fun.

2. Be Precise About Subject & Date Range of Information You Need

Don’t be too general in your request for information. The easier you make the government workers’ jobs in finding you the information you want, the more information you’re likely to get.

If you want a specific record, name it. If you want records on a specific topic, be precise about that topic. Likewise be precise about the date range for records. 

The Access to Information Act defines “record” as “any documentary material, regardless of medium or format.” So asking for “records” is probably your best bet, rather than a long winded description of emails, power point presentations, briefing notes, and the like.

There is a balancing act between being too precise in your request so that you get nothing, and not being precise enough so that again you get nothing. Generally speaking it’s better to be too precise than too general.

Too precise might require you to draw back a bit and submit a second slightly more general request, but the government’s access to information coordinators can actually be quite helpful in shaping requests to make them more responsive. Give them a specific record target, and they will work with you. Give them a dump truck of information that you want, and they may not be so accommodating.

3. Ensure Right Person is Making Request for Information

Under the Privacy Act, you can only request your own information. Under the Access to Information Act, only a person or corporation inside Canada can request information. Using an authorized agent inside Canada with a Canadian address to request the information for you is fine. Just don’t try to get the government to provide information to you outside Canada or as a non-Canadian. Work with a Canadian inside Canada (like a lawyer) if you are outside Canada or a non-Canadian.

Send along a use of a representative signed authorization form if you are working with an agent or lawyer to request information for you, since the government needs official authorization to send the requested information to someone other than you. 

4. Resubmit Redrafted Request if You Don’t Get What you Need

Because of my “cheap fun” point above, unlike a legal procedure like a court action which has a huge cost to recommence from the start if it fails, and might not even legally be possible to get going again because of res judicata, nothing stops you from resubmitting variants on earlier ATIP requests. Use a different date range. Use different keywords. Think of it like a very slow Google search.

Maybe the information you’re looking for doesn’t exist. Or maybe you just didn’t ask for it in the right way.

Sending in hundreds of additional requests for information are likely to be deemed frivolous, and eventually the government will stop working with you. But a couple of additional requests, aiming at slightly different targets on the government information rifle range, might score a bullseye where your first request totally missed the mark.

5. Be Prepared to File Complaints on Exemption Claims to Information or Privacy Commissioners

Appeals of denials of information - either under access or privacy requests - can be a lot of hassle, and take a lot of time. Better first to just work with the government department in question to see if you can resolve the issue amicably. Maybe documents can be edited to give you some information, rather than sending you reams of blank sheets in response to your request.

When I was responsible for responding to one legal demand for disclosure of a voluminous government operations manual as part of a court case, I spent days blanking out page after page, or leaving in a line here and there, concerned that putting it all out there would compromise government security. I later found out the litigant had also made an Access to Information Act request outside of the court process, for the exact same material, and received about 90% more information than I was ready to release because that government department had stacks of pre-vetted “sanitized” operations manuals pre-printed just sitting in a warehouse, waiting for someone to ask for them.

So don’t assume that access to information coordinators are there to frustrate you. On the contrary, they’ll probably be way more helpful than lawyers like me would be who always tend to take conservative views of public disclosure. Access coordinators have as a primary role the promotion of the release of information, not its suppression.

But sometimes you’ll run into a wall, being told information does exist within government, but that you’re not going to get it because of one of a few notable exemptions. The most commonly cited exemptions are:

a. information obtained in confidence from another government;

b. information injurious to conduct of federal-provincial affairs;

c. information injurious to conduct of international affairs or defence;

d. law enforcement information;

e. information injurious to economic interests of Canada including contractual negotiations;

f. personal information (as defined in the Privacy Act);

g. third-party trade secrets, financial, commercial, scientific or technical information “treated consistently in a confidential manner by the third party,” or which could reasonably be expected to prejudice the competitive position of a third party or interfere with contractual or other negotiations of a third party;

h. advice, recommendations or plans for government operations;

i. solicitor-client privileged information.

Government invoking one of these exemptions to information disclosure could be quite legitimate. But the statutory language of the exemptions is very technical, thus whether they apply or not might involve nuanced judgment calls subject to arguable disagreement. 

Complaints over refusals (or unreasonable demands for production fees) may be made to either the Information Commissioner (for Access to Information Requests) or the Privacy Commissioner (for Privacy Act Requests). They both have investigative powers and the ability to make recommendations on disclosure. Court action on information denial is also possible.

Following these “rules” may not get you everything your want every time out of an access to information or privacy request, but they should at least maximize your prospects of success of getting something responsive, instead of just a stack of blank pages.

Gordon S. Campbell is an information and privacy lawyer who assists clients throughout Canada with obtaining information from all levels of government. He has served with the Department of Justice Canada, the Attorney General of Ontario, the RCMP, the Canadian Armed Forces and Global Affairs Canada, as well as litigated public law cases up to the level of the Supreme Court of Canada. Learn more at www.acmlawfirm.ca.

Must I Consent to a Police Search Request? And the Uncontrollable Urge to Say "Yes"

"No." Unlike some of my what can unfortunately seem like long winded and not as definitive as clients might like answers, consent to search spawns a clear cut single word answer. At least in Canada. 

Police questioning is totally different from police searches as to whether you have a choice or not in responding. While my default advice is always “say nothing” in response to police questions, unfortunately the real world is much more nuanced than that. Sometimes you must answer police questions, depending on what they are asking about (like insurance automobile questions). And sometimes it's in your best interests to answer police questions in an attempt to clear up suspicions and avoid being charged, even if you aren't obliged to answer (though often its not a good idea to do so). But never do you have to consent to a search.

Either the Police Have a Power to Search or They Don't

Either the police have powers and grounds to search, or they don't. It's only when they don't have grounds that they might ask you a question after a highway speeding stop like: "you mind if I take a look in your trunk?" And sometimes if you do say "no", you might get a response like "hey, if you don't have anything to hide, why would you say no?" Your best response is to remain firm and polite in your "no." At the very least, call a lawyer for advice. 

Sometimes, the police might even pull out a form for you to sign, which says that you've been told: (1) you don't have to consent, (2) that you can withdraw your consent at any time, and (3) anything found during the search can later be used against you as evidence in court. Now reading this, you might be thinking: "Why would anyone consent? I would certainly never consent! I'm not that stupid!"

Why Do So Many People Consent to Police Searches?

But thousands of people a year throughout Canada (and in other countries with similar constitutional protections against unreasonable search and seizure, like the United States) do just that, and consent to searches where the police have no grounds to search. Some even carefully read those forms, do understand them, but sign anyway. Why?

It seems to be something to do with people feeling that: (1) they have no choice, (2) they have nothing to hide, or (3) even though they do have something to hide, the police won't find it, and this is the best way to get rid of them. These "yes" men and women are wrong on every count. 

First, you do have a choice if the police ask if you mind if they do a search. Be it a search of your vehicle, a search of your house or office, a search of a bag you are carrying, or a search of your person, just say that you do mind. Be polite about it. You can even ask whether the police will go ahead without your consent, because they believe they have some kind of other authority?

The Police May Already Have Other Authority to Search Anyway

Sometimes the police will already have - or have sufficient grounds to obtain - a search warrant to search your vehicle, house or office. If they do, then your consent is irrelevant. Don't try to stop the police from executing a warrant (or otherwise conducting any kind of search), unless you want to be charged with obstructing justice. But they must get the warrant from a judge or justice before conducting a search, or have some other kind of lawful power to search without consent. 

Sometimes the police will already have grounds and powers to search incident to arrest without a warrant. Again, if they do then your consent is irrelevant. But they must have first arrested you, told you what you are being charged with (unless it is an emergency), and not exceed the limits of the search incident to arrest power (usually limited to your person and what you are carrying - though occasionally it might extend to a vehicle you are in; it will never extend to your whole house or office). 

Sometimes the police will be able to invoke exigent circumstances to search without a warrant or arrest if there is an emergency situation, where the search just can't wait. Again, your consent will be irrelevant. Though be aware that true exigent circumstances searches are very rare, since the police do have investigative detention powers to hold you, your vehicle, or even your home or office for a reasonable period of time pending the arrival of a search warrant. 

All Consent Searches are Vulnerable to Challenge

If my police powers to search explanation is starting to sound a bit complicated, that's because it is complicated. Lawyers and judges disagree frequently about when particular powers exist, and well intentioned police officers can certainly get it wrong if the judges are having trouble getting it right. Though throughout the training I still do for police officers on search and seizure, the best mantra for those officers to repeat is: "if in doubt, get a warrant." I especially teach my police students: never rely on consent, it's too uncertain of an authority, with too unpredictable later results. 

If you are the subject of a police search - by consent or otherwise - and something incriminating is found that leads to you being charged, my recommendation is to consult a lawyer about your prospects for challenging the search in court. I'm not saying you are guaranteed success on such a challenge, but in my experience most people never challenge police searches. Sometimes a search will be completely legal, and sometimes it won't be. But only by involving a lawyer will you be able to find out which category your search falls into.

No One Would Believe This In a Movie Script

While serving as a Federal Crown Prosecutor I once was involved in a case where a BMW speeding along the TransCanada Highway was stopped by police for a traffic violation. The stopping officer only had grounds for a traffic violation, but his suspicions were quite appropriately aroused.

The occupant of the fancy car seemed overly polite when stopped. And overly nervous, constantly shifting in his seat, eyes darting about, hands tightly gripping the steering wheel. Plus the vehicle had out-of-province plates, and the conscientious officer remembered from his training that fast food wrappers strewn about a car might be a sign that the occupants were driving non-stop over a great distance for illicit purposes (yes, there is a course on that, I've seen the materials; it might motivate all of us to tidy our vehicles). 

So, after giving him a speeding ticket, the officer asked the driver if he minded if the officer took a quick look in the trunk of the car. This officer was very well trained, and made it clear to the driver that he didn't need to consent, that he was free to go, and that anything he found could be used against the driver in court. The officer even pulled out a consent form for the driver to sign. Now what the officer definitely didn't know in advance was that the driver had 10 kilos of coke and $100,000 in cash in the trunk. And what do you think that driver did? He signed, and popped the trunk!

Gordon S. Campbell practices criminal defence law throughout Ontario, with a focus on search and seizure cases which he has appeared on up to the level of the Supreme Court of Canada. He also trains law enforcement agencies throughout Canada on search warrant & wiretap drafting, and is author of The Investigator's Legal Handbook series of books.